Why New York's Failed Soda Ban Matters

This week, libertarians, New York City tabloids, and fans of unhealthy quantities of sugary drinks all celebrated the sudden, unexpected defeat of Mayor Mike Bloomberg’s ban on soda and other sweet drinks larger than 16 ounces. On Tuesday, the law was going to go into effect, but on Monday, it was blocked by the excellently named State Supreme Court Justice Milton Tingling. The Bloomberg administration is appealing the decision, in order to save thousands of tubby folks from their own self-destructive urges. But for now, New Yorkers are free to buy a two-liter soda at a Chuck E. Cheese and chug it in front of the cops if they like.

It’s easy to dismiss the people who marched—or, more commonly, just complained online—in favor of their inalienable right to disgustingly large quantities of chemical-flavored brown water. Many commentators have admitted that a soda ban is stodgy and paternalistic but argue that it’s a tiny issue that’s not worth getting angry about. Others have simply pointed to alarmingly obese children clutching big-ass drinks as proof that state intervention is needed.

While it’s true that this administration has done far worse than inconvenience Coke-heads, the existence of horrible things isn’t an excuse to accept softer forms of nanny-state tyranny. There are plenty of reasons to object to the soda ban—and the imitators that it’s already inspired—and most have nothing to do with carbonated beverages.

The Board of Health’s assault on sweet things follows the same logic as outdoor smoking restrictions and bans on trans fats that have spread from New York to California and throughout the US—all of these things will make our cities and citizens healthier, and therefore fitter, happier, and more productive. That justification has been a favorite excuse for some of our biggest domestic -policy disasters. Marijuana was banned by the federal government in 1937 after decades of being associated with jazz, racial minorities, and side effects that supposedly included everything from insanity to nymphomania. Once the government decided weed was a bad thing, it was put in the same legal category as dangerous substances like heroin, and today America is spending $40 billion a year fighting an unwinnable drug war.

But heavy-handed laws banning substances and activities on the basis of morality or health go way beyond drugs. The more than 100 SWAT raids that go on every day mostly target narcotics, but cops go on expensive, flashy raids to crack down on cockfighting, gambling, lemonade stands, and that much-touted hippie panacea, raw milk. That last one is particularly odd. Raw milk has ambiguous health benefits and pretty concrete dangers (like being more at risk of spreading food poisoning), but the people who drink it and deal it are hardly dangerous criminals. Nevertheless, since the law banned it five years ago, there have been several examples of guns-out raids of co-ops—most memorably, Rawsome Foods in California, which has been raided twice in two years—that were selling raw milk. An Amish farmer who sold raw milk was also the victim of a federal sting in April 2011. That is a few steps more extreme than Bloomberg’s soda ban, but it’s all part of the government’s effort to police our bodies and put routine activities within the ever-increasing bounds of the law. That should make Big Gulp pride rallies seem a little less silly.

Finally, dewy-eyed advocates of benevolent government intervention should acknowledge that governments rarely oppress us all equally. Judge Tingling blocked the Bloomberg soda ban not on any high-minded philosophical grounds, but because its tangle of loopholes, exemptions, and penalties were “arbitrary and capricious.” Big Gulps would have stayed legal, it turns out. Huge diet sodas were fine. Enormous things of milk or fruit juice were allowed, as were alcoholic drinks. Worse still, big chain convenience stores were exempt (since the Health Department doesn’t have authority over them) but food carts—the epitome of the entrepreneurial, little guy in business—were not. Rather than being a noble fight against corporate power, as some of its supporters suggested, the ban was just another law that sounded helpful on paper but wouldn’t have solved the original problem while creating more needless legal obstacles.

The soda ban may get resurrected, even if it’s dead for now in New York. And when the law rises again, a new crop of restrictions and prohibitions will probably come along with it. When that debate restarts, it’s worth remembering that your freedom to drink a soda is tied to your fundamental right to control your own body—a right the state has demonstrated time and again that it has no interest in letting you claim.

Lucy Steigerwald is a freelance writer and photographer. Read her blog here and follow her on Twitter: @lucystag